Free speech: When it’s OK to call someone a thief

Call someone a thief in everyday life and you might have to pay damages if it’s not true. But free-speech protections apply if you do it during an election campaign — even an election for the governing board of a condominium owners’ association.

A state appeals court in Santa Ana this week threw out a defamation suit by a former condo director who said she was falsely accused of fraud. It happened in September 2009 on an evening when owners at Brookhurst Village in Anaheim were about to elect a new board of directors. Veronica Cabrera no longer lived at Brookhurst but was campaigning for a slate of candidates for the board. Representing one of those candidates at the board meeting, she called one of the incumbent directors, Mohammed Alam, a “dictator” and said the association was “missing funds” during his tenure.

Alam then rose and, according to his account of the meeting, asked Cabrera what happened to a $100 rebate check the association was supposed to get when Cabrera was president of the board. He denied taking any funds himself, and so did Cabrera, who later sued him for allegedly slandering her.

If Alam and Cabrera were private citizens arguing about a business deal, she might have been able to get a jury to decide whether he was falsely accusing her of theft. But the state Supreme Court has described owners of condos and other planned development units as “a little democratic society” whose governing bodies are regulated by the same kinds of open-meeting laws as public agencies. As the court put it in 2000, “For many Californians, the homeowners association functions as a second municipal government.”

That means the board’s meetings are considered “public forums” under the law, just like a city council. And according to the Fourth District Court of Appeal in this week’s ruling, Alam’s statements about Cabrera involved “an issue of public interest” because they responded to her accusations against him and were part of a debate over his re-election to the board.

Even though Cabrera herself wasn’t a candidate and no longer owned a unit at the condos, the court said she joined the debate by campaigning for a slate of candidates and speaking on behalf of one of them at the meeting, which was otherwise limited to condo owners.

So her suit was governed by the same free-speech rules that apply to charges and counter-charges between candidates — rules that allow a slander suit only if the statement was either knowingly or recklessly false. Cabrera offered no evidence that Alam was deliberately lying; in fact, the court said, Alam said he had evidence that Cabrera had pocketed the association’s rebate check, a dispute that remains unresolved. That means he at least believed he was telling the truth, and her suit had to be dismissed. What’s more, under a state law covering suits that interfere with free speech, she has to pay Alam’s court costs and attorneys’ fees.

Cabrera’s lawyer, Jeffrey Roberts, says he may appeal to the state Supreme Court.

“I don’t believe there’s any forum that’s appropriate for persons to defame another person, particularly accuse them of crimes,” Roberts said. He said it’s particularly dangerous to remove any legal consequences for those types of statements at homeowners’ association meetings, where “you get a lot of divergent views and a lot of very angry people.”

But Alam’s lawyer, Barry Ross, says that’s just why free-speech rules should apply to statements at those meetings by someone like Cabrera, who “injected herself into the election process.”

“Freedom of speech assures people the opportunity to voice their opinions about candidates and say what they feel is appropriate,” Ross said.

For those who want to read the ruling, it’s available at www.courtinfo.ca.gov/opinions/documents/G044023.PDF.